R v Smith

[1992] QCA 113

IN THE COURT OF APPEAL [1992] QCA 113

SUPREME COURT OF QUEENSLAND

C.A. No. 334 of 1991

THE QUEEN

v.

DAVID RODNEY SMITH

(Appellant)

JUDGMENT - PINCUS J.A.

Delivered the Nineteenth day of May 1992

Subject to what is written below, I respectfully agree with
the reasons of Thomas J, but I do not agree with his Honour's

conclusion. I am, like McPherson J.A., of the view that the jury's verdict must be regarded as unsafe. I do not find it

necessary to repeat the explanation of the nature of the case which is to be found in the reasons of the other members of the Court.

The jury were evidently satisfied that the appellant, as the Crown alleged, sought and obtained sexual favours from

Greskie's prostitutes and that, in arranging for this to occur,

Greskie understood that she would derive some advantage for her

business. What the Crown had to prove was that the advantage

contemplated was ensuring an absence of "genuine police action", with a view to protecting Greskie and her employees from detection and punishment. It was not enough for the prosecution

to satisfy the jury that the sexual services were provided "on account of" an expectation of considerate treatment and absence of harassment. Irksome as that may have been for the prosecution, the constraints imposed on it by the terms of the

charge had to be observed.

Greskie had pleaded guilty to a charge under the same section of the Code and that plea implied the existence of facts consistent with the truth of the Crown's case against the appellant. However, when asked at the appellant's trial about the provision of sexual favours, she denied that her purpose had

to do with the "breaching arrangement", which the Crown equated

with absence of "genuine police action" and which had been in force for some time before the appellant asked for sexual

favours. It was open to the jury to infer that the appellant's purpose was much the same as Greskie's, or at least to entertain

a reasonable doubt, on the basis of Greskie's evidence, as to
the proposition the Crown urged against the appellant.

Not every difference between the details of what is charged and that which is proved is fatal to the validity of a conviction and there was, as the reasons of Thomas J. demonstrate, evidence capable of supporting a conviction on the

indictment. In my opinion, however, one could feel no

confidence that in arriving at its verdict the jury did so with a clear appreciation of what it was, in practical terms, that the Crown had to prove. The case was undoubtedly a difficult

one in which to sum up, but it was in the circumstances necessary to draw the jury's attention carefully to what was involved in at least the more contentious elements of the charge as laid. They included a definition of the matter on account of which the corrupt agreement was alleged to have been made.

The method of summing up adopted by the learned judge
involved a danger, namely that the jury might treat the elements

of the charge I have just mentioned as mere verbiage and of no real significance. They might have been encouraged to do so by the judge's having placed before the jury, with no unfavourable comment, issue (b) specified by the prosecution:

"Did Smith agree to go easy on Greskie in exchange for free sex being provided to himself and other police officers?"

In view of the terms of the indictment and indeed those of the section on which it was based, inviting the jury to consider whether Smith agreed to "go easy on" Greskie was likely to draw them well away from the true issue.

I should add that in my opinion, the Court's - i.e. the

judge's and jury's - consideration of the matter was not made

easier by the prosecution's approach to the question of particulars. The Crown's real case seems to have been that the

corrupt agreement contemplated continuation of a system, already in place, described as "arranged breaching" and comprising the

features explained in the reasons of Thomas J. One may properly

ask: if that was the Crown case, why was the prosecution so coy about formally alleging it? This is not to say that in every corruption case the Crown must state precisely and in detail what it was that the corrupt official was to do, or did, for the benefit received; that may, in particular cases, be known only

generally. But here, according to the respondent's submission

before us, what the appellant was to do under the agreement was

clear and in no doubt; it should therefore have been defined, by way of particulars and not merely in the course of an

address. Following that practice might have avoided the sort of error which was made here, namely that the jury was distracted from its proper task by an indication that it might be enough to

find, in lieu of what was alleged, a broader and vaguer

wrongdoing.

On the uncontradicted evidence of the Crown witnesses, the appellant behaved disgracefully; there was a risk, unless the jury's attention was carefully focussed on the charge as laid,

that he would be convicted simply because of the jury's disapproval of what he did. I am left with the impression that

the Crown's case, not having been initially defined in the

proper manner, was left to the jury on a basis which might well have induced them to find the appellant guilty without being in

fact satisfied that it was contemplated that the appellant would

do for Greskie that which the indictment alleged. The appeal

should, in my view, be allowed and the conviction set aside. I would order a new trial; it is of course a matter for the Crown whether the matter is pursued further.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 334 of 1991

Before the Court of Appeal

Mr. Justice McPherson

Mr. Justice Pincus

Mr. Justice Thomas

THE QUEEN

v.

DAVID RODNEY SMITH

(Appellant)

JUDGMENT - PINCUS J.A.

Delivered the Nineteenth day of May 1992

MINUTE OF ORDER:The appeal is allowed, the conviction is set

aside and a new trial is ordered.

CATCHWORDS:	CRIMINAL LAW - OFFICIAL CORRUPTION - Appellant convicted of official corruption arising out of protection from prosecution for prostitution - elements of offence discussed - whether benefit "on account of" benefit from other party - whether sexual services are a "benefit" within s.121
Criminal Code s.121 Vagrants Gaming and Other Offences Act 1931,

ss.5(1)(b), 5(1)(c)

Counsel: J.A. Griffin Q.C., with him A.C. Smith for the

Appellant

R.A. Mulholland Q.C., with him R. Sibley for the

Crown

Solicitors:  Johnsons as town agents for Butler McDermott &

Egan for the Appellant

Director of Prosecutions for the Crown

Hearing Date(s):  5, 6 and 9 March 1992